R L SAPRA Vs. OM PERKASH

JUDGEMENT

(1.) This revision u/s 115, Civil Procedure Code . is directed against order dt. 6.12.79 of S.S.J., Delhi confirming order dt. 29.10.79 of Sub-Judge 1st class, Delhi refusing to grant temporary injunction restraining Deft. from dispossessing and removing power & telephone connection fitted on 1st floor of A-81/2 Wazirpur Ind. Area, Delhi.

(2.) The petitioner and the respondent by a deed dated June 18, 1977 entered into partnership to carry on business under the name and style of 'Mystika Industrial Electroplaters' at A-81/2, Wazir Pur Industrial Area, Delhi. The investment and machinery was to be provided by the petitioner. The respondent was to provide only the said premises. The profits were to be divided in the ratio of 85% and 15% between the petitioner and the respondent ; the losses were agreed to be born by the petitioner. The petitioner alone was responsible for running the day to day business of the partnership. The respondent did not have any right to receive or disburse any loan from any body on behalf of the firm. The parties also agreed that the firm would not be dissolved by reason of retirement, insolvency, disability or death of any partner and on the happening of any event, the remaining partner would be entitled to continue the business of the firm as per term No. 11. It was also provided that the terms of the partnership may be altered, modified, varied, added or cancelled by any agreement arrived at between and signed by them. On June 28, 1977 another agreement was executed between the parties by which it was agreed that in pursuance of the said partnership deed the petitioner would pay Rs. 1,500.00 per month as fixed profit to the respondent from July 1, 1977, that the respondent having no knowledge either technical or of any other nature would not be responsible for any loss or profit in the business of the partnership, that the work would be done and supervised by the petitioner, that the respondent would have no concern with the goodwill of the firm, that the partnership would be using the power, water and telephone No. 241823 facility which was in the personal name of the respondent and would bear the charges. On July 28, 1977 the respondent also executed a special power of attorney in favour of the petitioner authorising him to receive and deposit, pay or raise money for the purposes of financing the business of the partnership firm. The petitioner was further authorised to soley operate the bank account and that he would be resposible for repayment of the loans of the firm.

(3.) Some mis-understanding or dispute, it appears, arose between the parties resulting in the institution of the present suit on February 14, 1979 for declaration and injunction. The plantiff pleaded that he has been a tenant under the defendant with respect to the said premises at Wazir Pur Industrial Area, Delhi on a monthly rent of Rs. 1,500.00, that the power and telephone connections have been in his actual use and possession, that he installed machinery in the said premises, that he has been carrying on the business since July 1, 1977 and paying monthly rent Rs. 1,500.00 by payees account cheques to the defendant who has not issued any receipt, that from the beginning the defendant had a malafide intention of not executing a proper lease deed and by mis-representation he got executed the said partnership deed, dated June 18, 1977 which is sham, fictitious, illegal and unenforcable in law, that the deed was never intended to be acted upon as the premises were let on a monthly rent of Rs. 1,500.00, that the defendant has been threatening, to dispossess him from the premises and to remove machinery, the power connection and the telephone. The petitioner therefore prayed for the passing of:- (a) a declaratory decree declaring the partnership deed dated 18.6.77 as illegal, unenforcable, obtained by fraud and misrepresentation ; (b) a declaratory decree declaring the plaintiff as a tenant in the premises, i.e. first floor consisting of one hall, five rooms, balcony, bathroom and latrine situated at A-81/2, Wazir Pur Industrial Area, Delhi- 110052 at a monthly rent of Rs. 1,500.00; (c) a decree for permanent injunction restraining the defendant from dispossessing the plaintiff and removing the power connection No. 4 AZK. 904849 and telephone connection No. 741823 fitted in the said premises and in use of the plaintiff.